Self v. Mixmaster, LLC

Full title: LAUREN SELF, Plaintiff, v. MIXMASTER, LLC, JONATHAN SHAPIRO and JORDAN…

Court: New York Supreme Court

Date published: Oct 19, 2015

2015 N.Y. Slip Op. 31938 (N.Y. Sup. Ct. 2015)

Opinion

Index No. 505064/15

10-19-2015

LAUREN SELF, Plaintiff, v. MIXMASTER, LLC, JONATHAN SHAPIRO and JORDAN EDWARDS, Defendants.

HON. LOREN BAILY-SCHIFFMAN, Justice.

NYSCEF DOC. NO. 23 At an IAS Term, Part 65, of the Supreme Court of the State of New York, held in and for the County of Kings, Brooklyn, New York, on the 5^th day of October, 2015 PRESENT: HON. LOREN BAILY-SCHIFFMAN, Justice. DECISION AND ORDER Motion Seq. # 1 & 2 The following papers were read on defendants' motion to dismiss the 3^rd, 4^th, 5^th and 6^th causes of action and for a change of venue¹:

	Papers Numbered
Notice of Motion	1
Affirmation in Support and Exhibit	2
Affidavit of Jordan Edwards and Exhibit	3
Affidavit of Brittany Generosa	4
Affidavit of Laura Aiello	5
Memorandum of Law in Support	6
Supplemental Affidavit of Jordan Edwards	7
Notice of Cross-Motion, Memorandum, in Support, AffidavitAffirmation and Exhibit	8
Reply Affirmation	9
Reply Affidavit and Exhibit	10
Reply Memorandum of Law	11

1 The court treats the plaintiff's cross-motion to retain jurisdiction as opposition to defendants' motion for change of venue

Upon the foregoing cited papers the Decision/Order on this motion is as follows:

Defendants, Mixmaster, LLC, Jonathan Shapiro and Jordan Edwards move to dismiss the 3^rd, 4^th, 5^th and 6^th causes of action in the complaint and for a change of venue from Kings County to Nassau County in this action seeking damages for sex harassment, discrimination on the basis of gender/sex and retaliation by plaintiff's employer. The 3^rd cause of action seeks damages for discrimination in violation of the New York City Administrative Code. The 4^th cause of action seeks damages for retaliation in violation of the New York City Administrative Code. The 5^th cause of action seeks damages for intentional infliction of emotional distress. The 6^th cause of action seeks damages for negligent infliction of emotional distress.

BACKGROUND

The complaint alleges that Plaintiff, Lauren Self, a resident of Brooklyn, New York, was employed by defendant, Mixmaster, LLC, from on or about July 21, 2014 to approximately April 2015 as Director of Operations. Plaintiff alleges she was constructively terminated on or about April 2015. The complaint alleges that Defendant Shapiro is the owner of defendant, Mixmaster LLC; defendant Edwards is an owner and President of defendant, Mixmaster LLC; and defendants Edwards and Shapiro both supervised plaintiff's work. Plaintiff alleges primarily worked for defendants in Lynbrook, New York but also worked in locations in New York City. The complaint alleges that on an on-going basis plaintiff was subjected to sex discrimination, sex harassment and hostile work environment which caused her emotional distress and that she complained about these unlawful employment practices. The complaint further alleges that defendants retaliated against plaintiff for her complaints and that as a result of this discrimination and retaliation plaintiff was forced to leave her employment with defendants in April 2015 under circumstances constituting a constructive termination.

Plaintiff's complaint was verified and filed with the court on April 27, 2015. Defendants' motion papers do not indicate that they answered the complaint. Rather, the instant motion was filed on June 5, 2015 seeking dismissal of certain causes of action and a change of venue to Nassau County for the convenience of witnesses.

LAW

Motion to Dismiss

A motion to dismiss pursuant to CPLR §3211(a)(7) seeks dismissal of the complaint or portions thereof on the basis that the complaint fails to state a cause of action. In considering such a motion the court "should accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" Simons v. Vic-Armen Realty , LLC , 92 AD3d 760, 761 (2d Dept 2012); see also Leon v. Martinez , 84 NY2d 83, 87-8; Cervini v. Zanoni , 95 AD3d 919, 921 (2d Dept 2012). Whether the complaint will later survive a motion for summary judgment or whether plaintiff will be able to sustain her burden at trial plays no part in the court's determination at the pre-discovery stage. Shaya B. Pac , LLC v. Wilson , Elser , Moskowitz , Edelman & dicker , LLP , 38 AD3d 34, 38 (2d Dept 2006). The court may consider affidavits submitted by the plaintiff to remedy any defects in the complaint McGuire v. Sterling Doubleday Enters , LP , 19 AD3d 660, 661 (2d Dept 2005); Leon v. Martinez , supra at 88; Morris v. Chase Bank , 125 AD3d 731 (2d Dept 2105) ; however, the court may not consider defendants' affidavits for the purpose of determining whether there is evidentiary support for the allegations in the complaint. Rovello v. Orofino Realty Co., 40 NY2d 633, 635-6 (1976); Kempf v. Magida , 37 AD3d 763 (2d Dept 2007).

Change of Venue

The leading case on change of venue in the Second Department is O'Brien v. Vassar Bros. Hosp., 207 AD2d 169 (2d Dept 1995). It sets forth four (4) criteria established in the case law to change venue for convenience of witnesses where venue is properly placed. Despite defendants' allegations that plaintiff rents out her apartment on airb&b and sleeps on friends' couches, venue is properly placed in Kings County based upon the plaintiff's residence CPLR §503(a). Plaintiff's allegation of residence in Kings County must be taken as true for the purposes of the instant motion. Thefour (4) criteria set out in O'Brien , supra are as follows:

"First, "[t]he affidavit in support of a motion under this section must contain. . . the names, addresses and occupations of the prospective witnesses" Hurlbut v. Whalen , 58 AD2d 311 (4^th Dept 1977) Other citations omitted.

"Second, a party seeking a change of venue for the convenience of witnesses is also required to disclose the facts to which the proposed witnesses will testify at the trial, so that the court may judge whether the proposed evidence of the witnesses is necessary and material" citations omitted

"Third, the moving party must show that the witnesses for whose convenience a change of venue is sought are in fact willing to testify" citations omitted

"Fourth there must be a showing as to how the witnesses in question would in fact be inconvenienced in the event change of venue were not granted" citations omitted

In support of its motion to change venue, defendants present the affidavits of Jordan Edwards, Brittany Generosa, Laura Aiello. Mr. Edwards lists in his Supplemental Affidavit, dated June 5, 2015 a number of witnesses, the county of their residence (not their addresses), a very general description of the subject matter of their proposed testimony and the position they held with defendant Mixmaster, LLC or Mixology. Plaintiff cross-moves to retain venue in Kings County which the court is treating as opposition to defendants' motion.

DISCUSSION

Claims pursuant to NYC Administrative Code

Defendants assert that the 4^th and 5^th causes of action brought pursuant to the NYC Administrative Code must be dismissed because the NYC Human Rights Law applies only to employment acts taking place within the boundaries of New York City, Admin Code 8-107 , and plaintiff's complaint does not allege that any of the instances of discriminatory conduct occurred in New York City. Plaintiff opposes defendants' motion to dismiss the 3^rd and 4^th causes of action on the basis that the complaint alleges that plaintiff worked in New York City complaint at ¶33-35 and that she was subjected to unwelcome sexual comments while working in New York City complaint at ¶44c. At this stage of the litigation, pre-answer and pre-discovery, the court cannot say that plaintiff can make out no claims for discrimination and retaliation that occurred in New York City. The complaint states otherwise and the court is required to accept the allegations in the complaint as true. Leon v. Martinez , supra; Simons v. Vic-Armen Realty , supra; Cervini v. Zanoni , supra. Accordingly, a determination of whether the plaintiff can prove her complaints of discrimination and retaliation pursuant to the NYC Human Rights Law must await the completion of discovery and, perhaps, a trial on the merits.

Intentional Infliction of Emotional Distress

Defendants' motion asserts that plaintiff cannot make out a claim for intentional infliction of emotional distress because she cannot show that the actions of defendants complained of "transcend all bounds of decency and [are] regarded as atrocious and utterly intolerable in a civilized community" Howell v. New York Post Co., 81 NY2d 115 (1991). In opposition to this portion of defendants' motion, plaintiff cites to several cases that hold that where the facts asserted exhibit a "pattern of behavior that continually put plaintiff in embarrassing, humiliating and demeaning positions", a claim for intentional infliction of emotional distress has been stated. Collins v. Wilcox , Inc., 158 Misc2d 54 (Sup Ct NY Co , 1992); Polley v. FRB of New York 1994 US LEXIS 11813 (SDNY); O'Reilly v. Executone of Albany , Inc., 121 AD2d 772 (3d Dept 1986); and Bonner v. Guccione , 916 F.Supp 271 (SDNY 1996). Clearly, the allegations in the complaint assert a pattern of behavior that put plaintiff in embarrassing, humiliating and demeaning positions. Whether these allegations can be proven and, if proven, whether they rise to a level that "transcends the bounds of decency" must await the completion of discovery. Accordingly, defendants' motion to dismiss the 5^th cause of action is denied.

Negligent Infliction of Emotional Distress

Defendants seek dismissal of plaintiff's 6^th cause of action for negligent infliction of emotional distress on the basis that the Workers Compensation Law is the plaintiff's exclusive remedy for negligent conduct by an employer toward its employee. Plaintiff is correct in its opposition that defendants' motion is defective in that proof of workers compensation coverage was not submitted with the motion. Accordingly the motion to dismiss the 6^th cause of action is denied.

Change of Venue

Defendants cite to O'Brien v. Vassar Bros Hosp , supra as the leading case on change of venue for convenience of witnesses in the Second Department and set forth the four (4) criteria required to support a motion to change venue where venue was properly placed in the complaint. However, defendants have failed to provide evidence to support two (2) of the four (4) required criteria. As plaintiff points out in her opposition to defendants' motion to change venue, all of the witnesses listed by Jordan Edwards in his Supplemental Affidavit in support of the defendants' motion are employees of defendant. "[I]t has been repeatedly stated that the convenience of the parties or their employees will not be considered in determining a motion for change of venue pursuant to CPLR 510 (3)." Coles v. LaGuardia Medical Group , PC , 161 AD2d 166 (1^st Dept 1990). See also Cilmi v. Max E. Greenberg , Trager , Toplitz & Herbst , et al , 273 AD2d 266 (2d Dept 2000); Leake v. Constellation Brands , 2013 NySlip Op 08413 (2d Dept 2013). Moreover, defendants failed to indicate in any way whether the listed proposed witnesses were willing to testify or would, in fact, be inconvenienced by keeping venue in Kings County as required by the third and fourth criteria cited in O'Brien , supra. See also Blumberg v. Salem Truck Leasing , Inc. 276 AD2d 577 (2d Dept 2000) and Schneider v. Montalbano , 233 AD2d 586 (2d Dept 1996). As defendants have failed to meet their burden of establishing the four (4) criteria set forth in O'Brien , supra , defendants' motion to change venue is denied in all respects.

It is hereby ORDERED that defendants' motion to change venue and to dismiss the 3^rd, 4^th, 5^th and 6^th causes of action in the complaint is denied in all respects. This is the decision and Order of the court.

ENTER

/s/_________

LOREN BAILY-SCHIFFMAN

J.S.C.